New South Wales Court of Appeal CITATION : Walsh v. Visionstream Pty. Limited [2004] NSWCA 104 HEARING DATE(S) : 16 March 2004 JUDGMENT DATE : 2 April 2004 JUDGMENT OF : Beazley JA at 1; Young CJ in Eq at 25; Barrett J at 29 DECISION : Appeal dismissed with costs CATCHWORDS : ERROR OF LAW - Error of fact - No evidence to sustain factual finding of trial judge - Distinction between primary and ultimate findings of fact - Wrong primary finding of fact not an error of law - Section 32 of Compensation Court Act 1984 - Power of court to review decisions flawed in point of law only LEGISLATION CITED : Compensation Court Act 1984 Workers Compensation Act 1987 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 CASES CITED : Bruce v Cole (1998) 45 NSWLR 163 Hill v Green (1999) 48 NSWLR 161 R v District Court of the Metropolitan District Holden at Sydney: ex parte White (1966) 116 CLR 644 Waterford v The Commonwealth (1987) 163 CLR 54 PARTIES : Martin Walsh (Appellant) Visionstream Pty. Limited (Respondent) FILE NUMBER(S) : CA 41232/02 COUNSEL : R. Goodridge (Appellant) H. Shore SC (Respondent) SOLICITORS : Firths - The Compensation Lawyers (Appellant) Bartier Perry LOWER COURT Compensation Court JURISDICTION : LOWER COURT WC51212/01 FILE NUMBER(S) : LOWER COURT Burke ACCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41232/02 WC 51212/01 BEAZLEY JA YOUNG CJ IN EQ BARRETT J 2 April 2004 WALSH v. VISIONSTREAM PTY. LIMITED Facts The appellant performed strenuous physical work for a period of 12-13 years before commencing employment with the respondent which also involved strenuous and heavy physical work. During his period of employment with the respondent, the appellant had eight periods of time away from work due to back pain, some of which related to specific work incidents. The appellant sought compensation for injuries sustained on two occasions. The trial judge rejected the appellant's claim on the grounds that since on one of the two occasions complained of the appellant was only off work for three days, it could not have substantially contributed to his injury and that it was more likely that the appellant's back pain was the result of the type of work in which he had been engaged over the preceding twenty years. The appellant appealed on the ground that the trial judge erred in law because there was no evidence upon which his Honour could have found that he was off work for three days following one of the two incidents for which compensation was sought. Instead, the evidence indicated that the appellant had been off work for two-three weeks. HELD per Beazley JA (Young CJ in Eq and Barrett J agreeing): (i) There is no error of law simply in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 per Brennan J. (ii) A distinction must be drawn between primary findings of fact and the ultimate finding of fact. In relation to the former, there is no error of law with respect to a wrong primary finding of fact such as whether an applicant suffered injury on a particular date: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 per Glass JA. (iii) It is not possible to convert a wrong finding of fact into a question of no evidence upon which the relevant finding could be made. (per Barrett J): (i) Although in a context of general judicial review, a finding of fact made in the absence of probative evidence to support it may amount to an error of law (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and Bruce v Cole (1998) 45 NSWLR 163), the jurisdiction to be exercised in this case is a specific and limited statutory jurisdiction and leaves no room for such an approach. ORDERS 1. Appeal dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41232/02 WC 51212/01 BEAZLEY JA YOUNG CJ IN EQ BARRETT J 2 April 2004 WALSH v. VISIONSTREAM PTY. LIMITED Judgment 1 BEAZLEY JA: This is an appeal from a decision of Acting Judge Burke in the Compensation Court of New South Wales in which his Honour dismissed the appellant's claim for weekly compensation, lump sum compensation and medical expenses in respect of a claimed incapacity from the period 5 July 2000 to date and continuing due to a back injury sustained during the course of his employment. The appeal to this Court is on a question of law only: Compensation Court Act 1984, s.32. The question of law identified by the appellant was that there was no evidence on which the trial judge could have reached his determination. Background facts 2 The appellant commenced employment with the respondent in about 1994 as a cable television installer. This required him both to lay cable for pay television and also to attend to the connection of the cables to the television sets. The work involved in laying cable was strenuous heavy physical work. The connection work was less strenuous but still of an active nature. The appellant remained in that employment until 4 July 2000 when he accepted a redundancy package. Prior to commencing work with the respondent, the appellant had worked for 12-13 years as a landscape gardener. He described that work as strenuous physical work. 3 During the period of employment with the respondent, the appellant had eight periods of time away from work due to back pain. Some of those occasions related to specific work incidents. Others were due to injuries at home or for which no specific cause was ascribed. Briefly, the history of the eight incidents was as follows. The first occurred on 23 January 1996 when the appellant fell over at home. He hurt his back and was off work for a few days. In April 1996 he was off work for five days due to back pain. The trial judge made no finding as to the cause of his disability on that occasion. The appellant's evidence was that he had backache "probably from just the usual bending over working in the pits that we always do". He had a further day off work on 19 August 1996 due to back pain. On 19 November 1996 he had an accident at work when he trod on a manhole cover, fell, and, as his Honour described it "ended up sitting on his tail". It appears he suffered immediate back pain on that occasion. He was off work for three days. In April 1997, he was off work for another two days due to back pain but again no specific cause was assigned for his disability on that occasion. 4 On 21 November 1997, the appellant, whilst at work, suffered back pain when lifting a generator into the back of a van. He described his pain on that occasion as having "a hard twinge in my … lower back". He saw Dr. Verghis, general practitioner on 25 November, with a clinical presentation of "considerable spasm of the para-vertebral muscles" and restriction of movement. He was reviewed by Dr. Verghis twice up until 8 December 1997 during which time Dr. Verghis advised conservative treatment. Thereafter, the appellant consulted Dr. Peterson, also a general practitioner. He reported to Dr. Peterson that "X-ray had demonstrated L5/S1 disc narrowing". Dr. Peterson diagnosed an L5/S1 disc strain. Dr. Peterson also treated the appellant conservatively with pain relief medication. He considered him fit to work from 11 January 1998. However, on the appellant's evidence, he was off work for a period of about three weeks at this time and on his return to work, was allocated light duties for a period of about two weeks. 5 On 8 October 1999, the appellant sustained a further injury to his back. On that occasion he was disconnecting a cabled bambella from a trailer and felt pain in his back. He was off work for six weeks on that occasion. He returned to work on full duties and continued on full duties until the termination of his employment due to redundancy on 4 July 2000. 6 The appellant also gave evidence that he used to get a sore back quite often because of the bending over working in the pits. 7 On 5 July 2000, the day after the appellant accepted his redundancy payment he made his claim for compensation for incapacity due to back injury. 8 The appellant's claim for compensation was based solely on the injuries sustained on 21 November 1997 and 7 January 1999 as it was only in respect of these two occasions that the appellant's employment was covered by the provisions of the Workers Compensation Act 1987 (the 1987 Act). For reasons which are not relevant to this judgment, the other occasions when disability was suffered which were employment related, were periods in which Commonwealth legislation applied. 9 Under the 1987 Act, a person "who has received an injury" is entitled to compensation from the employer in accordance with the Act: s.9. Section 9A, however, provides: "(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury." 10 The trial judge rejected the appellant's claim. In doing so, his Honour posed the following question for determination: "The problem is of course, what is wrong with him and what caused it." (Red AB 73) The appellant accepted that was a correct statement of the questions that the trial judge was required to determine. 11 As to the first portion of the question, his Honour found that the appellant had "a genuine organic back problem" due, to a "problem with the L5/S1 disc". Having made that finding, his Honour then went on to consider the second part of the statutory prescription namely, "what caused" the appellant's back injury. 12 In the course of considering that question, his Honour referred first to the evidence of Dr. Wallace, orthopaedic surgeon. Dr. Wallace's opinion was that the appellant had "suffered a recurrent musculoligamentous strain … as a result of his injuries sustained … in November 1997 and January 1999". Dr. Wallace said he did not consider that the lifting strain in October 1999 contributed to his current disability. His Honour commented: "There is no explanation of why [Dr. Wallace] takes that view and it does not seem to make a lot of practical common sense". Counsel for the appellant accepted that his Honour's remark amounted to a rejection of the evidence of Dr. Wallace. 13 This view appears to be reinforced in his Honour's next reference to Dr. Wallace's the evidence. In an opinion, given after he saw an MRI scan, Dr. Wallace considered that the lumbar sacral disc protrusion was due to the incident on 25 November 1997. His Honour said: "Why he picked November 1997 I do not know. The man was off for 3 days , went back to work and worked on for quite some time thereafter." (emphasis added) 14 His Honour next made reference to the evidence of Dr. Berry, specialist general surgeon, who also expressed the opinion that the "most significant injury" was that sustained on 25 November 1997. In Dr. Berry's opinion that was because "thereafter he was never entirely free of pain". He considered that two-thirds of the appellant's impairment was due to that injury, whilst one-third was due to the injury in October 1999. Dr. Berry did not attribute any portion of his complained disability to the episode in January 1999. 15 His Honour then stated at para. 12: "On the serial history of facts and the circumstances, November 1997 does not seem to have been a major event by any manner or means. One could blame the January 1999 (sic) installing the pit. He was off for about six weeks. Or the October 1999 (sic), being later still and off for six weeks again. But it does not seem that the November 1997 (sic) would have played any substantial part in the evolution of whatever happened." 16 In paragraphs 11 and 14 of the judgment, his Honour stated that the appellant was off work for three days after the November 1997 accident. It appears therefore that his Honour considered that such a short period off work meant that the injury could not have been serious. He averts to this in para. 14 when he says, referring to the November 1997 accident: " Three days does not sound like it did a lot of damage at the time. Then over the next 15 months he sees his GP repeatedly in respect of a variety of problems without ever a complaint of his back. He was back at work, he was doing full duties, albeit they may have modified a bit since when he first started. That sort of sequence of events in history does not suggest an event that was a major cause of any back problem ." (emphasis added) 17 His Honour concluded at para. 16 that the incident that the appellant's "doctor (and I understand this to be a reference to Dr. Wallace) selects seems to be the least significant of the lot". His Honour held that, he could not "see that even the combined effects of the two events were such to be a substantial cause of his ongoing back problem." Rather, his Honour considered that the effects of his injuries over the previous twenty years including the type of work that he had been doing was probably the substantial factor in producing the current changes. Error of law 18 The appellant submitted that his Honour erred in law because there was no evidence upon which his Honour could have found that he was off work for three days following the November 1997 incident. It was submitted that all the evidence was that the appellant had been off work for at least two and probably three weeks. There is no doubt on the evidence, and senior counsel for the respondent did not seek to contend otherwise, that his Honour made a mistake in relation to the period of time off work. The question for this Court's determination is whether that error, that is a mistaken finding of the period of time that the appellant was off work, is a mistake which amounts to an error of law. 19 The question of what is an error of law and what is an error of fact is not always an easy question. However, there is a long established body of authority directly on the point in issue in this case. The most straightforward statement is to be found in the judgment of Brennan J in Waterford v. The Commonwealth (1987) 163 CLR 54 at 77 where his Honour said: "There is no error of law simply in making a wrong finding of fact." 20 This was not new law. The question of what constitutes an error of fact as opposed to an error of law was considered by this Court in Azzopardi v. Tasman UEB Industries Limited (1985) 4 NSWLR 139. That was an appeal from the New South Wales Workers Compensation Commission. Glass JA, having referred to a series of jury cases commencing in 1931 stated, (at 155): "To say of a [jury] finding that it is perverse, that is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact ." (emphasis added) His Honour then went on to state that as the Workers Compensation Act did not allow the Court of Appeal " to correct errors of fact ": "…any argument that the finding of a Workers Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v. District Court of the Metropolitan District Holden at Sydney : ex parte White (1966) 116 CLR 644 at 654." Later in his judgment his Honour drew a distinction between primary findings of fact and the ultimate finding of fact. In relation to the former, his Honour said that there was no error of law with respect to a wrong 'primary finding of fact' such as whether the applicant suffered injury on a particular date . 21 Glass JA made the point crystal clear later in his judgment. He said: "Errors may be committed by a Workers Compensation judge at any one of three points viz determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage the determination of facts by a reasoning process marred though it be by patent error , illogicality or perversity will, as has been said, never be vulnerable to attack as an error of law …" (emphasis added) 22 During the course of argument, both counsel made reference to onus. It is not necessary in my opinion to analyse the arguments of counsel on this point. The issues raised here did not involve questions of onus. The sole question is whether a wrong finding of fact can constitute an error of law. 23 In my opinion, it is not possible to convert a wrong finding of fact into a question of no evidence upon which the finding could be made (which was wrong). Nor does it assist to formulate the matter in the way put by counsel, namely that the trial judge made factual findings, which were wrong, upon which to determine the question posed by the legislation. As I have said, the error was in respect of the primary findings of fact not in the ultimate finding. For that reason I consider that the appeal should be dismissed. 24 Accordingly, I would dismiss the appeal with costs. 25 YOUNG CJ in EQ: I have read the judgment of Beazley JA and agree with it and with the additional comments of Barrett J. 26 I regret the result of this appeal and indeed, although the authorities referred to by Mr H G Shore SC seemed to me during the oral hearing to make the result which her Honour has reached inevitable, I considered we should reserve our decision because I was extremely disturbed that his Honour Judge Burke on five separate occasions said that the appellant was only off work for three days. It was quite clear that his Honour was completely wrong in this. It may have been that he was confusing what happened in November 1996 and 1997. The error that he made fundamentally affected the way his Honour approached his decision. 27 However, despite wrestling with the authorities I have, with regret, reached the conclusion that they are too strong against treating the errors that his Honour made as other than errors of fact. 28 Accordingly, I agree with the reasons of her Honour. 29 BARRETT J: The circumstances giving rise to this appeal are described in the judgment of Beazley JA which I have had the advantage of reading. Her Honour's judgment enables me to be brief in saying why I agree that the appeal should be dismissed with costs. 30 In the judgment under appeal, the primary judge said on no less than five occasions that, following the incident of 27 November 1997, the appellant was away from work for three days. The passages quoted at paragraphs 15 and 16 of Beazley JA's judgment show that the finding that the absence was for three days rather than any longer period caused the judge to regard the incident in question as not having contributed in any substantial way to the appellant's injury. 31 There was clear evidence before the primary judge that the appellant was absent from work following the November 1997 incident but, as to duration, that evidence referred to three weeks or two weeks. While the evidence was thus capable of supporting a finding of absence for three weeks or two weeks, it was incapable of supporting the finding as to duration that the primary judge actually made. The judgment does not disclose any process of reasoning in which a possible finding of three weeks absence and a possible finding of two weeks absence were consciously rejected in favour of the finding of three days absence. On the face of the judgment, there was nothing but an immediate and unexplained jump to the finding of three days. 32 In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Mason CJ referred (at p.359) to the possibility that, in a context of general judicial review, a finding of fact made in the absence of probative evidence to support it may amount to an error of law. Observations of Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at p.189 are to the same effect. But the jurisdiction to be exercised in this case is a specific and limited statutory jurisdiction which, as the majority view in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 confirms, leaves no room for any such approach, tempting though that approach may be as a means towards redressing error that may have produced injustice. The finding of three days absence was not made without evidence about the fact and duration of absence but, rather, in the face of and contrary to such evidence of duration as there was. A telling point made by Glass JA (with whom Samuels JA agreed) in Azzopardi is that a finding of a jury which, upon examination, is seen to be against the weight of the evidence or unsupported by the evidence is set aside not because it reflects or is a product of an error of law but because it is wrong in fact. Conclusions of fact are the only conclusions that a jury is capable of reaching, with the result that perverse jury findings – even those marred by patent error - represent, of their very nature, error of fact, not error of law. 33 Parliament has deemed it conducive to the peace, welfare and good government of New South Wales that the Court of Appeal not possess any general power of review in relation to decisions of the Compensation Court; and that its jurisdiction to provide a remedy extend only to cases where a party is "aggrieved by an award of the Judge in point of law …": Compensation Court Act 1984, s.32(1). The legislature intends that all grounds of grievance in point of fact should be beyond the Court of Appeal's reach. The Court is compelled by statute to ignore all grounds of such a nature that, in a jury trial, they would involve attack upon a jury finding. It is accordingly not possible in this case to do anything about what appears to be an obvious mistake in the primary judge's finding as to the duration of the November 1997 absence. 34 In saying this, I do not overlook the possibility that, because s.17(1) of the Compensation Court Act requires every decision of the Compensation Court to be "upon the real merits and justice of the case", error in the finding of facts material to a decision – or, for that matter, any factor of any kind contributing to a result that in some way does not reflect "the real merits and justice of the case" – entails departure from the course required by s.17(1) and therefore forms the basis of grievance "in point of law". That possibility is outlined in the judgment of Fitzgerald JA in Hill v Green (1999) 48 NSWLR 161 at p.209. Such an approach would mean that every decision of the Compensation Court reflecting a wrong result (or, more precisely, a result not in accordance with "the real merits and justice of the case") was reviewable without regard to the nature of the error infecting it. That, it seems to me, involves an attempt to eke out of a general specification of the Compensation Court's functions a broad jurisdiction to review for unreasonableness or injustice of a kind that, while available in other statutory contexts (and at common law), is at odds with the distinction that s.32(1) draws between decisions flawed "in point of law" (which are reviewable) and those flawed in some other way (which are not). ********** Last Modified: 04/05/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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